publicity pamphlet: "Until otherwise provided by law," ordains the California constitution, shall be printed, all measures submitted to a vote of the electors and together with arguments for and against each such measure by the proponents and opponents thereof, shall be mailed to each elector . . .: and the persons to prepare and present such arguments shall, until otherwise provided by law, be selected by the presiding officer of the Senate. Nine of the constitutions specify that the initiated or referred measures shall be submitted at the next general election. Usually there is also a provision permitting the governor or leg islature to call special elections. Five constitutions' regulate to some extent the ballot to be used. For example, Nebraska' provides that all propositions shall be submitted in a non-partisan manner and without any indication or suggestion on the ballot that they have been approved or endorsed by any political party or organization, and .. only the title of measures shall be printed on the ballot and, when two or more measures have the same title they shall be numbered consecutively in the order of filing with the Secretary of State and including the name of the first petitioner. In case of conflict between two or more laws ratified by the people at the same election, seven constitutions provide that the one receiving the largest number of affirmative votes shall be law--at least as to conflicting points. Washington* goes more into detail,— When conflicting measures are submitted to the people the ballots shall be so printed that a voter can express separately by making one cross (X) for each, two preferences, first, as between either measure and neither, and secondly, as between one and the other. If the majority of those voting on the first measure is for neither, both fail, but in that case the votes on the second issue shall nevertheless be carefully counted and made public. If a majority voting on the first issue is for either, then the measure receiving a majority of the votes on the second issue shall be law. Cal., O., Wash. 1Ariz., Me., Md., Nebr., O. III, 1 D. Ariz., Cal., Mich., Nebr., Nev., N. D., O. 4II, 1a. 146. vass, Etc. Nine states make decisive the majority of the vote for and Required against any measure. In Washington the vote on the measure Vote, Canmust equal one-third of the total vote at the election. In New Mexico the majority must not be less than forty per cent. of the total vote so cast. Arizona" provides that the secretary of state, in the presence of the governor and the chief justice of the supreme court shall canvass the vote, within thirty days of the election, upon which the governor shall by proclamation declare the result. The time for taking effect is variously specified,-when approved by the people, from date of official declaration of vote, on the thirtieth day after the election, upon proclamation of the governor, which in some states must be within a certain number of days after the official canvass has been completed, and a specified number of days after the official declaration of the vote by the secretary of state.3 1 The veto power of the governor is generally denied in case of popularly enacted measures. Oklahoma provides that any measure rejected by the people, through the powers of the initiative and referendum, cannot be again proposed by the initiative within three years thereafter by less than twenty-five per centum of the legal voters. In Arizona the legislature cannot repeal or amend measures approved by the electors. Oklahoma, on the other hand, expressly declares that the reservation by the people of the powers of initiative and referendum shall not deprive the legislature of the right to repeal or pass any measure otherwise allowable. Washington' takes middle ground, No act, law or bill approved by a majority of electors voting thereon shall be amended or repealed by the legislature within a period of two years following such enactment. But such enactment may be amended or "Ariz., Ark., Cal., Colo., Md., Me., Mich., Mo., Ore. IV, Pt. I, 1 (13). Ark., Mo., Okla., Ore. SN. M., Nev., N. D., Md., after proclamation by the governor. "Wash. 1Ariz. Colo., Nebr., Me., (with further details). Cal., Mich. 4V, 6. "IV, Pt. I, (6) (1914). 147. Pecularities of Legislation Enacted by the Voters. 7II, 1c. 148. Direct and Indirect Initiative. repealed at any general. regular or special election by direct vote of people thereon. In several states the constitutional provisions for initiative. and referendum are declared to be in all respects self-executing." Limitations expressed in the constitution on the power of the legislature to enact laws are declared likewise to limit the initiative in Michigan and Nebraska, and, scattered through the various provisions are special limitations. Several states provide that the enacting clause1 of popularly initiated acts shall read, "Be it enacted by the people . . .," instead of "by the legis lature." Among the numerous special problems which a constitutional convention framing an initiative and referendum clause must consider, two of the most important are (1) whether popularly initiated measures shall be submitted directly to the people or first referred to the legislature, and (2) to what extent acts passed by the legislature may be declared emergency measures and made exempt from the referendum. Six of the states provide for submission of initiated measures to the legislature with provision for a popular vote in case the legislature does not enact them.3 Two of these states1 provide, also, that, on petition signed by the same or a larger percentage of the voters, a measure may go directly to a popular vote. A seventh state" simply requires the legislature to enact initiative proposals and submit them to the electorate. eighth state authorizes popular proposals to the legislature and does not require submission to the people even if the legis An $See: Cal. IV, 1; Mich. V, 1; Nev. XIX, 3, for other analogous regulations. Ariz., Colo. Ib., with additional provision that laws may be passed to facilitate their operation,- Cal., Md., Neb., Nev., N. D., O., Wash. 1e. g., Mont., Nev. Cal., Me., Mich., Nev., N. D., Wash. Such measures are subject to the referendum just as are other statutes. Sometimes they take precedence over all other measures before the legislature. Sometimes, also, if the legislature passes another bill on the subject of one initiated, both must be submitted to the voters. In Maine when there are competing bills and neither receives a majority of votes given for or against both, the one receiving the most votes shall at the next general election to be held not less than 60 days after the first vote thereon, be submitted by itself if it receives more than one-third of the votes given for or against both. 3. e., without change. *Cal., Wash. Wash. Whether measure referred to legislature depends on time of filing. 6S. D. 70. Initiated measures are subject to referendum. lature does not act upon them unless such submission is demanded by a supplemental petition signed by the same percentage of the voters as was required for the original petition. The remaining initiative states authorize only the direct initiative, which brings the measure proposed before the voters without recourse to the legislature. The latter method is, of course, more squarely in accord with the idea of direct legislation, but the requirement that the legislature shall first pass upon an initiated bill offers such opportunity for revision and the correction of technical defects as that body affords and may save the trouble and expense of a popular election. Emergency clauses are incorporated into most of the referendum clauses to prevent the use of the referendum to delay measures of great immediate importance. If the legislature is allowed to decide which acts involve cases of emergency or are necessary to preserve the peace, health or safety of the state, any act which the legislature wishes to be certain of operation may be so declared and the whole object of the referendum clause defeated. The way out of the difficulty seems to be either to define "emergency" by very specific constitutional provisions, to require extraordinary majorities for passage,2 or simply to make all acts of whatever nature subject to the referendum. Certain named classes of bills, for example, appropriation bills, may be-and commonly are-exempted from the referendum. 149. Emergency Acts. 150. Arguments The general argument in favor of direct legislation is chiefly that it forms a more adaptable piece of machinery for effiectuat- for and Against ing the popular will than does the representative system alone. Direct That its potential use often makes unnecessary its actual use is indicated by a governor of South Dakota who, in 1902, said, Since this referendum law has been a part of our Constitution we have had no charter-mongers or railway speculators, no wild-cat schemes, se. g., Ore. IV, 28. Kadderly v. Portland, 44 Ore., 118 (1903); Contra, State v. Meath, 147 Pac., 11 (Wash., 1915). e. g., Mich., V, 1. 1See Me. IV, Pt. III, 16; Okla. V, 58. 2e. g., O. II, 1d (2/3). See Idaho, Amendment 15. 'See, e. g., Mich. V, 1. Legislation. submitted to our Legislature. Formerly our time was occupied by speculative schemes of one kind or another, but since the referendum has been made a part of the Constitution these people do not press their schemes upon the legislature; hence, there is no necessity of having recourse to a referendum." Those who deplore the rapidly spreading use of direct legislation urge that it takes law-making from responsible assemblies and turns it over to irresponsible voters who are not only unprepared to overcome the technical difficulties of legislation but are largely without opinion upon the subject of legislative needs. Furthermore, it is said that the preparation of bills by irresponsible persons may result in the insertion of pernicious riders in measures that are likely to prove popular, and that special interests may invoke the referendum to delay the operation of wholesome laws. It must be confessed, however, that few legislatures are themselves without sin in any or all of these particulars. Probably no better summing up can be found than the following statement of President Lowell, which, while exposing the fallacy underlying the overwrought enthusiasm of many proponents of the initiative and the referendum, recognizes that they have a place in political theory and practice, a place, indeed, of great potential utility:— That direct popular action upon laws, when wisely and scientifically applied, will prove highly useful in certain conditions of society we may well believe without expecting it to usher in the millennium. All theories based on the assumption that the multitude is omniscient are fallacious, and so are all reforms that presuppose a radical change in human nature. It is easy enough to prove that any form of government will work like a charm if everyone who has a share in the public authority is spotless in wisdom and character; and there has probably never existed a political system of which men have not tried to demonstrate the perfection. Mankind is, and so far as we can see is likely to be, composed of some very good people, some very bad ones, and a large number who are well meaning, but more or less indolent and indifferent when their personal sympathies or interests are not touched; and the test of any institution is the fruit it will bear in a community of that kind. Quoted by Lowell, op. cit., 228, from Arena, Aug., 1902, p. 124. |